Date: 07-30-2015

Case Style: The Kroger Co. v. Christopher Milanes

Case Number: 14-13-00873-CV

Judge: J. Brett Busby

Court: Texas Court of Appeals, Fourteenth District on appeal from the 129th District Court of Harris County

Plaintiff's Attorney: Chance McMillan, Jason A. Gibson and Peter Michael Kelly for Christopher Milanes

Defendant's Attorney: Brock C. Akers for The Kroger Co.

Description: Appellant, The Kroger Company, a non-subscriber to workers’
compensation insurance, appeals from a final judgment in favor of appellee
Christopher Milanes, a Kroger employee who was seriously injured while cutting
meat. In its first two issues, Kroger contends the trial court erred when it
submitted Milanes’s claim to the jury on a general negligence theory rather than a
premises liability theory. We overrule these issues because (1) the Supreme Court
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of Texas has held that a non-subscriber employer in Texas owes continuous, nondelegable
duties to its employees separate and distinct from those owed to an
invitee on the premises; and (2) Milanes alleged, and legally sufficient evidence
showed, that Kroger breached those duties.
Kroger asserts in its third and fourth issues that the evidence is legally and
factually insufficient to support the jury’s findings that Kroger’s negligence
proximately caused Milanes’s injury and that he suffered past and future loss of
earning capacity as a result of the injury. We overrule these issues because the
record on appeal contains legally and factually sufficient evidence of both
proximate cause and loss of earning capacity.
In its fifth issue, Kroger contends that the trial court abused its discretion
when it admitted irrelevant photographs and videos that it argues were taken
illegally. We overrule this issue because the photographs and videos were
relevant, Milanes took them while legally on Kroger’s premises, and Kroger has
not shown that he violated any law while doing so. Finally, Kroger argues in its
sixth issue that the trial court abused its discretion when it failed to intervene to
remedy alleged juror misconduct. We overrule this issue because, even if we
assume the trial court had a duty to intervene and failed to do so, Kroger has not
established that it was harmed as a result. We therefore affirm the trial court’s
judgment.
BACKGROUND
A. Kroger hires Milanes and trains him as a journeyman meat cutter.
Milanes applied for a job at Kroger in 2007. Milanes went through a oneday
orientation before he started work. According to Milanes, the orientation did
not involve safety training but instead covered the advantages of joining the union.
Once Milanes started working for Kroger, he was assigned to work in the meat
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department as a clerk. After he had been working for about a month, Kroger
promoted Milanes to apprentice meat cutter. Milanes then moved from store to
store before eventually being assigned to the Post Oak Kroger in 2009.
As an apprentice meat cutter, Milanes received on-the-job training from a
journeyman, or more experienced, meat cutter. Journeyman meat cutters were
supposed to train apprentices on the proper operation of the store’s meat-cutting
equipment, including the Biro brand bone-in band saw at issue in this appeal. The
journeyman meat cutter was also expected to train the apprentice in the safety
measures that needed to be taken while using that equipment. Milanes eventually
became a journeyman meat cutter.
Milanes testified that he received a great deal of his meat-cutting training
from Matt Anderson, a journeyman meat cutter at the Kroger store in Montrose.
While Milanes testified that he believed Anderson did a good job training him, he
also testified that he was not taught by anyone at Kroger to use the band saw blade
guard, which both the saw manufacturer and the Occupational Safety and Health
Administration (OSHA) require to be used at all times while cutting meat with the
saw.1 Indeed, Milanes testified that he was not even aware that the bone-in band
saw had a blade guard; instead, he was taught the blade guard was a guide used to
line the meat up prior to cutting. As a result, Milanes never used the blade guard.
Milanes also testified that he was never given Kroger’s Meat and Seafood
Department Safety Manual or the Biro band saw’s operator’s manual. Milanes
further testified that the bone-in saw manufacturer’s warning labels were not on the
Post Oak Kroger’s saw during the time he worked at the store.
1 Milanes testified that he did not learn that the band saw was equipped with a blade
guard until after his injury. Evidence showed that a meat cutter was required to keep the blade
guard set to one-half inch above the level of the meat being cut at all times.
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B. Problems with Kroger’s bone-in band saw were reported prior to the
injury.
Milanes and other meat cutters experienced problems with the bone-in saw
prior to Milanes’s injury. Milanes testified that before he was injured, he reported
to Kroger management: (1) the saw squealing loudly; (2) the blades dulling very
quickly, often within thirty or forty minutes of the blade being changed; (3) the
saw frequently catching the meat and sucking it into the blade; (4) the saw being
off-balance and shaking frequently; (5) the blade wobbling; and (6) the presence of
a lip on the saw table that frequently snagged the meat. Milanes testified that if he
told Adam Bell, another journeyman meat cutter who also served as a relief meat
market manager, about a problem, Bell would start tinkering with the saw in an
effort to fix the problem. Milanes saw Bell doing maintenance on the saw at least
twice a week.
With respect to the saw blade dulling quickly, Milanes admitted he had the
discretion to change the blade whenever he believed it was necessary. He went on
to explain, however, that Kroger management had asked the meat cutters to be
sparing with the blades and to make them last. The evidence also revealed that
there was a financial incentive for managers to come in under budget. Milanes
recounted an episode in which he had used so many blades on the bone-in saw that
the store’s supply was exhausted, thereby angering management.
In addition to Milanes, several other Kroger meat cutters testified during the
trial regarding the pre-accident condition of the saw and Kroger’s handling of
maintenance issues. These witnesses included William Quinones, Michael Barnes,
and Bell. Quinones still worked as a Kroger meat cutter at the time of trial.
Kroger had terminated Barnes prior to trial for alleged dishonesty. Bell, as
mentioned above, was a meat cutter and assistant meat market manager at the Post
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Oak Kroger. All three testified that there were frequent problems with the bone-in
saw.
Among the problems Quinones reported to Kroger management were (1) the
blade tension was not right; (2) the blade would occasionally pop off of the saw;
(3) the saw table was wobbly; and (4) the blade dulled quickly, requiring frequent
blade changes. According to Quinones, management could not get the problems
with the saw fixed before Milanes’s injury. Quinones also explained that a band
saw making a loud squealing noise can indicate that there is a problem with the
saw’s blade tension. He went on to explain that if the tension is off, it can make
the blade dull more quickly. Quinones explained that a dull blade can cause the
meat to jerk or suck the operator’s hand into the blade.
Like Milanes, Quinones testified that he had never seen the operator’s
manual for the bone-in saw and management never told him that he had to read it
before operating the saw. Quinones also confirmed that there were no warning
signs or labels on the bone-in saw. Quinones never observed inspectors
performing regular maintenance on the saw. Instead, Kroger maintenance
personnel only came out when a problem was reported. Quinones testified that he
was not a trained maintenance person for the bone-in saw, but Kroger expected
him to perform maintenance on the saw. Quinones admitted that he had adjusted
the tension on the blade and that he had also seen Bell working on the saw.
Barnes confirmed many of the problems mentioned by Milanes and
Quinones. Barnes testified that he saw Bell adjusting the tension on the blade and
that Bell would grab pliers and attempt to fix any problem reported to him. Barnes
also agreed with Quinones that there was no regular maintenance program for the
store’s band saws.
Bell testified that he experienced the blade popping off the saw prior to
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Milanes’s injury. He went on to explain that, in his experience, the blade coming
off a band saw was caused by either (1) an accumulation of bone dust and “goop”
clogging the blade scrapers;2 or (2) the blade tension not being set properly. Bell
also testified that when a band saw makes a loud noise, it means something is
wrong with the saw. Bell further testified that he had never seen a complete list of
steps on how to clean the bone-in saw nor had he seen the operator’s manual for
the saw.
Bell admitted that he was not certified by the saw manufacturer to do
maintenance on the saw. Bell testified that, as a journeyman meat cutter, he could
change the saw’s blade and also adjust the tension of the blade but was not
authorized to do more than that. According to Bell, he took the saw apart to clean
it, not perform maintenance on it. After he was shown a photograph that appeared
to show him working on the bone-in saw, Bell explained that a Kroger
maintenance person had told him that there was a nut on the saw that if it became
loose, it could cause the blade to get out of adjustment and possibly even pop off.
Bell explained that he was attempting to adjust that nut when the photograph was
taken. Bell then denied that he was doing anything improper when the photograph
was taken.
Bell testified that he did not recall any particular problems with the bone-in
saw prior to Milanes’s injury. In Bell’s opinion, there would have to be something
very wrong with a band saw for the blades to dull within thirty to forty minutes of
being changed. Bell went on to state that dull blades make it more likely that the
meat will jump while being cut. Bell also did not recall any feedback from Kroger
2 There are two sets of blade scrapers on the bone-in saw, one above the cutting table and
one below. Each set consists of two pieces of metal attached to the saw housing, one on either
side of the revolving blade. The blade scrapers are designed to remove from the blade material
created by the cutting of the meat. Bell admitted that the blade scrapers had never been changed
during his time at the Post Oak Kroger.
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management about changing saw blades too frequently or any request to keep costs
down by not changing the blades out as often as a meat cutter believed necessary.
C. Milanes is seriously injured while cutting meat with the saw.
At the time of his injury, Milanes had nearly completed his eight-hour shift.
Milanes testified that even though it was the end of his shift, he was not tired and
was attending to the task of cutting meat just as closely as he had been at the
beginning of his shift. Milanes also testified that he had the meat seated properly
on the saw table prior to the injury. Milanes observed that the blade seemed pretty
dull, but he decided not to change the blade. According to Milanes, the saw was
making a loud noise that evening, and the table was still wobbly. Milanes also
noticed that the lip was still present on the saw table. Milanes did not report any of
these problems to management that evening because he had reported them
previously and the problems were not addressed.
Milanes was cutting a slab of meat into individual steaks and was about
three-fourths of the way through the slab. Milanes is right-handed, and he
estimated that his right hand was about six inches from the blade before the
accident occurred. According to Milanes, the accident happened so fast that he did
not see exactly what happened. Milanes testified that he believed the dull blade
caused the meat to jump, or flip over, pulling the fingers of his right hand into the
blade.
The saw blade amputated parts of three fingers from Milanes’s right hand.
Milanes was taken to the hospital, where he underwent surgery to reattach the
severed fingers. The surgery was unsuccessful. Milanes later underwent two
additional surgeries to cover exposed bone. After the surgeries, Milanes
underwent extensive physical therapy and testified that he continued to experience
a great deal of pain in the areas of the amputations. Milanes also testified that he
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experienced the phantom sensation that his fingers were still there. At the time of
trial, Milanes was still experiencing pain severe enough that he had to take pain
medication frequently.
Milanes reported that the loss of his fingers had adversely impacted his
ability to participate in physical activities such as rock climbing, basketball,
football, dodge ball, running with his dog, and lifting weights at the gym. The
injury also affected his ability to drive his standard transmission car. Milanes
reported that he was unemployed at the time of trial. Milanes testified that he had
tried two different jobs after he was terminated by Kroger, but he had been
unsuccessful because both jobs required manual dexterity. Milanes also testified
that all of his prior job experience had involved manual labor, and he could no
longer do that type of work.
Milanes offered evidence that after the accident, he experienced severe
anxiety, depression, insomnia, as well as nightmares about cutting off his fingers.
Milanes twice went to the hospital thinking he was experiencing a heart attack.
Doctors diagnosed both episodes as anxiety attacks, not heart attacks. Milanes also
experienced feelings of anger because the meat department personnel had
complained that the bone-in saw was not working properly prior to his injury.
Milanes eventually went to see a psychologist. Once Milanes returned to work at
the Post Oak Kroger, he experienced anxiety when he was around the meat saws.
Milanes’s psychologist recommended that he be kept away from the saws while he
was working.
D. Milanes returns to work on light duty and Kroger terminates his
employment.
Milanes was earning $16.69 per hour when he was injured. He returned to
work several months after the accident at that same wage. Milanes was initially
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placed on light duty in the meat department when he returned to work. Milanes
testified that he had no specific job duties while on light duty and frequently spent
his time doing little more than talking to customers. Kroger began asking Milanes
to resume cutting meat about a month after he returned to work but while he was
still on light duty. Kroger made this request even though Milanes’s doctors had
ordered that he not be required to cut meat at that point in time. Kroger asked
Milanes to return to meat cutting several times.
Milanes was to return to full duty with no restrictions on October 21, 2011.
The day before, Bell, as he was leaving work, instructed Milanes to clean the meat
department cooler. Milanes explained that an industrial hose and scalding hot
water were used to clean the meat department cooler and saws. Milanes picked up
the hose and noticed that it had a leak. Milanes also saw that a new hose was
laying nearby, so he called the store manager, William Underwood, and asked if
Underwood could send someone to change out the hoses. Underwood told Milanes
to do it himself. Milanes testified that he responded: “[C]an we have somebody
else? And he said, no. And before I could say anything else, he started yelling and
saying it’s not a light duty issue. Anything - - I didn’t even say that. And I said,
well, it is kind of a light duty issue. And he said I’ll be back there in a minute.”
Milanes testified that he did not believe the task of changing out the hoses was
within his job duties at that point in time. Milanes explained that he was still on
light duty, his hand was still hurting a great deal, and changing out the hose
required the person to use pliers and a wrench, tasks he did not think he should do
while his hand was still hurting.
When Underwood arrived, he asked Milanes why he could not change out
the hose. Milanes responded that he was not going to do it. Milanes testified that
he did not want to say in front of other employees that he was physically unable to
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change out the hose, but that Underwood was aware he was still on light duty.
When Milanes continued to refuse to change out the hose, Underwood terminated
him for insubordination. Milanes admitted that he never told Underwood in front
of other people that he was physically unable to perform the task of changing out
the hose.
E. Mechanical engineering experts testify regarding saw operation and
maintenance and the cause of Milanes’s injury.
At trial, mechanical engineer John Ryan testified on behalf of Milanes.
According to Ryan, OSHA standards require an employer to provide a safe
workplace. OSHA also has a general machine guarding standard that requires any
hazardous point of operation to be guarded. Additionally, OSHA had specific
standards for the operation of band saws such as the bone-in saw at issue in this
case. OSHA, according to Ryan, has three primary concerns with the operation of
band saws. First, OSHA requires that each band saw have an operational blade
guard. Second, OSHA emphasizes that a band saw’s blade tension must be
properly set. Finally, OSHA requires employers to have a training program in
place so that employees learn how to operate a band saw safely. Ryan explained
that blade tension is important for the safe operation of band saws because if the
tension is not set correctly, the blade can pop off the saw.
Ryan obtained a copy of the operator’s manual for the type of bone-in saw
used at the Post Oak Kroger. The manual states that the saw’s blade guard must be
kept within one-half inch of the meat being cut. According to Ryan, if the blade
guard is adjusted to within one-half inch of the meat, and the meat suddenly jumps
or rolls, the guard will prevent the operator’s hand from contacting the blade. The
manual also requires that all warning labels be kept on the saw and replaced
promptly if any come off. The manual also provides that if the saw is not working
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properly, it should be taken out of service until it can be repaired.
Ryan inspected the bone-in saw approximately one year after Milanes’s
injury. Ryan discovered that most of the saw’s warning labels were missing.3
Ryan also found the blade guard inoperable. He concluded the guard was frozen in
position as a result of the accumulation of either rust or “goop” generated by the
sawing of meat. The blade guard finally moved when he applied fifty pounds of
pressure. Ryan went on to testify that the guard remained very difficult to move
even after he broke it free.
Ryan took several videos during his inspection. One video showed Bell
cutting meat on the bone-in saw. Ryan observed that Bell did not use the blade
guard while cutting the meat and that the guard was at least four inches above the
level of the meat throughout the video.
Ryan opined that if the bone-in saw’s blade guard was not operational on the
day of Milanes’s injury, the saw should not have been in service. Ryan then
opined that if the saw had been taken out of service, Milanes would not have been
injured. He went on to opine that if Kroger had followed OSHA’s standards and
the requirements set forth in the operator’s manual, Milanes also would not have
been injured.
Ryan examined the saw’s blade tension during his inspection. Ryan found
numerous scratch marks on the inside of the saw housing. Ryan explained that the
scratch marks indicate the blade had popped off repeatedly and hit the metal
housing. Ryan opined that this type of contact with the metal housing can dull the
blade.
Ryan then explained that improper blade tension can also cause a wandering
3 Ryan explained that he found a couple of warnings still attached to the motor.
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cut. According to Ryan, when a blade is under-tensioned, it can cause the blade’s
cutting path to wander, which can lead to force being applied to the meat sideways.
This in turn increases the possibility that the saw will bind in the meat or the bone,
causing the meat to be thrown or to roll. Ryan added that this possibility increases
if the blade is also dull. Ryan calculated how much force this saw would apply to
an operator’s hand and found it reasonable that the saw could cause the meat to
roll.
Ryan next addressed the loud screeching sound the bone-in saw exhibited.
Ryan opined that the noise was created by the blade rubbing at high speed against
something, possibly the blade scrapers. Blade scrapers are designed to remove
meat and other debris from the blade to keep the blade clean and operational.
Ryan testified that if the blade is rubbing against one of the blade scrapers, it can
cause the blade to dull at a faster rate than normal.
Finally, Ryan discussed Kroger’s maintenance records for the bone-in saw.
Ryan asked to review all maintenance records for the saw. The first maintenance
record he received from Kroger was dated six days after Milanes’s injury. Ryan
also saw other post-injury records but he never received any maintenance records
pre-dating the injury. Both Underwood, the Post Oak Kroger store manager, and
the primary Kroger employee charged with maintenance on the saw, Brent Nixon,
confirmed the lack of any pre-injury maintenance records for the bone-in saw.
Neither could explain the lack of records.
Milanes called Kroger’s mechanical engineering expert, Thomas Grubbs, to
testify as an adverse witness. Grubbs inspected the bone-in saw two years after
Milanes’s injury. According to Grubbs, a band saw’s primary safeguard for
operator safety is an adjustable blade guard. The blade guard on the bone-in saw
was not operational when he inspected it, however. Grubbs testified that a band
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saw should not be operated if the blade guard is in the raised position.
Grubbs also testified regarding the importance of the manufacturer’s manual
for the saw. Grubbs stated that anyone operating a band saw should read the
operator’s manual first. He then testified that it is an employer’s duty to train
employees who will use a band saw based on the operator’s manual. Grubbs
testified that he believed the operator’s manual for a band saw should be followed.
He then opined that anyone not adequately trained on the operation of a band saw
should not use it. Grubbs also opined that it was important for an employer using
band saws to have written safety policies and procedures in place. Grubbs
explained that written safety policies are important so employees know what they
are supposed to do, and if they have questions, they know where to find the
answers.
Grubbs next covered the importance of a regular inspection and maintenance
program for band saws. Grubbs testified it is vital for an employer to have this
type of program in place because it ensures that the band saws are properly
maintained. Grubbs agreed that it was Kroger’s responsibility to keep the bone-in
saw in good working order. Grubbs also opined that an important part of an
inspection and maintenance program is having properly trained and qualified
personnel performing the inspections and maintenance on a band saw.
Grubbs testified again during Kroger’s case. Grubbs discovered during his
investigation that it was the Kroger meat cutters’ habit not to use the blade guard.
Grubbs then opined that because a piece of meat may vary in its height, it would be
unrealistic, and ridiculous, to expect the meat cutters to adjust the blade guard to
within one half inch of the top of the meat before each cut. Grubbs then opined
that the blade guard, even if it was nonoperational, was not a factor in Milanes’s
accident. Finally, Grubbs testified that during his inspection of the bone-in saw, he
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did not see any defects that would explain Milanes’s accident.
F. Kroger employees testify regarding saw operation and maintenance.
Kroger presented the testimony of several employees during the trial.
Underwood, the top manager at the Post Oak Kroger, was one of them.
Underwood initially testified regarding Kroger’s policies and procedures. When
he was shown Kroger’s Meat/Seafood Department Safety Manual, Underwood
could not locate the band saw maintenance and inspection program. Underwood
then admitted that he did not know for sure whether Kroger had a written policy
regarding inspection and maintenance of those saws. According to Underwood,
only Kroger maintenance personnel should work on the band saws. Expanding on
that, Underwood testified that the only thing meat cutters are authorized to do to
the saws is change the blades. If anything else needs attention, the meat cutter
should notify store management, who would then call in a service person.
Underwood denied being personally aware of any pre-injury safety
complaints about the bone-in saw, including complaints about the saw’s blades
dulling too fast. Underwood explained that he was not the only manager at the
store and the complaints could have been addressed to another manager.
Underwood then testified that there should be a record of any maintenance or
repairs performed on the store’s saws. Underwood was unable to explain why
there were no maintenance records for the bone-in saw predating Milanes’s injury.
Matthew Anderson is a journeyman meat cutter and Kroger meat market
manager. Anderson worked at the Post Oak Kroger about a year before Milanes’s
accident and therefore had no knowledge of the bone-in saw’s condition on the day
of Milanes’s injury. Among other subjects, Anderson testified about cutting meat
with a band saw. According to Anderson, a blade coming off the saw is not
uncommon. Anderson had also experienced meat jumping or rolling. He
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explained that meat jumping is unpredictable but certain circumstances, such as
dull blades, increase the possibility it will happen. Anderson testified that for a
blade to dull in thirty to forty minutes, “the saw would have to be so out of whack,
[he did not] even see how you could use it.” Anderson testified that if a band saw
is making a loud noise, it is a sign that it needs maintenance or repair.
Anderson also testified regarding Kroger’s policies and procedures
regarding band saws. He admitted that he was never shown the operator’s manual
for the bone-in saw and did not know whether Kroger has a policy prohibiting
workers from operating a meat saw without a blade guard in place. Anderson went
on that when he trained people to operate a meat saw, he told them to use the blade
guard and adjust it above the meat for safety reasons. He then admitted, however,
that he would see people cutting meat without using the blade guard.
Javier Duran was the meat market manager for the Post Oak Kroger when
Milanes’s injury occurred. Duran testified that he was taught to use the blade
guard during his training. Duran then admitted that the blade guard was not really
used by the meat cutters at the Post Oak Kroger but was just left in the same
position. Duran denied that Milanes ever complained to him about the bone-in saw
not working properly or about the blades dulling too fast. He also denied telling
Milanes to be conservative when changing blades. Duran admitted that meat
jumps occasionally while it is being cut. According to Duran, meat jumping is
generally unpredictable, but dull blades make it more likely to occur. Duran went
on to explain that a meat cutter should change the blade before it gets so dull that it
will lead to meat jumping.
Brent Nixon was the primary Kroger facility engineer responsible for
maintenance at the Post Oak Kroger at the time Milanes was injured. Nixon’s
duties included maintenance on the Biro band saw even though he had not been
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certified by Biro to perform maintenance on Biro saws. Nixon denied being aware
of any problems with the bone-in saw before the accident. He also did not recall
Milanes telling him that the bone-in saw needed repairs that were not being made.
Nixon also had no explanation for the lack of repair and maintenance records
predating Milanes’s injury. Nixon insisted that maintenance was done on the
bone-in saw prior to Milanes’s injury and that there were records of that work.
Nixon was the facility engineer sent by Kroger to investigate the band saw
several days after Milanes was injured. Nixon testified that he checked all aspects
of the saw thoroughly, and as a final check he turned the saw on and then beat the
moving band saw blade with a broom to “make sure [the blade was] not going to
come off.” Nixon reported that the only problem his investigation revealed was
the lip on the cutting table, which he repaired. Nixon testified he was unable to
find anything that would explain the accident.
G. The trial court signs a final judgment based on the jury’s verdict in
favor of Milanes.
At the conclusion of the evidence, the trial court proposed to submit the case
to the jury on an ordinary negligence theory. Kroger objected to the trial court’s
proposed jury charge and argued the case should be submitted to the jury on a
premises liability theory. The trial court overruled Kroger’s objection and rejected
its proposed premises liability question. The jury subsequently found Kroger
liable and awarded Milanes damages totaling $1,093,440.89. The trial court, after
crediting Kroger for the amount of medical expenses and wages it had already
paid, signed a final judgment awarding Milanes $1,016,809.10 plus pre-judgment
and post-judgment interest. This appeal followed.
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ANALYSIS
I. The jury was properly charged on a negligence theory of liability.
Kroger argues in its first two issues that the trial court erred when it
submitted the case to the jury under a negligence theory of liability. According to
Kroger, it is “well-settled that to state a general negligence claim [against a
landowner], there must be affirmative contemporaneous conduct by the owner at
the time of the incident which led to the plaintiff’s injury.” Kroger contends that
regardless of the theory of liability Milanes pled, Texas law and the evidence
introduced at trial established that the only duty it owed Milanes was that of a
premises owner. As a result, Kroger argues Milanes was limited to a premises
liability theory of recovery. Given that Milanes did not submit such a theory to
the jury, Kroger concludes it is entitled to a take-nothing judgment. We disagree
because under supreme court precedent, Kroger also owed Milanes duties of care
as his employer.
A. Standard of review
A trial court must submit in its charge to the jury all questions, instructions,
and definitions that are raised by the pleadings and the evidence. See Tex. R. Civ.
P. 278; E.I. DuPont de Nemours & Co v. Roye, 447 S.W.3d 48, 56 (Tex. App.—
Houston [14th Dist.] 2014, pet. dism’d) (citing Hyundai Motor Co. v. Rodriguez,
995 S.W.2d 661, 663–64 (Tex. 1999)). The parties have the right to be judged by a
jury properly instructed in the law. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378,
388 (Tex. 2000). The goal therefore, is to submit to the jury the issues for decision
logically, simply, clearly, fairly, correctly, and completely. Roye, 447 S.W.3d at
56. To achieve this goal, trial courts enjoy broad discretion so long as the charge is
legally correct. Id. We review whether a challenged portion of a jury charge is
legally correct using a de novo standard of review. Id. (citing St. Joseph Hosp. v.
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Wolff, 94 S.W.3d 513, 525 (Tex. 2003)). In making this determination, we
examine the allegations and proof introduced at trial. Oncor Electric Delivery Co.,
LLC v. Murillo, 449 S.W.3d 583, 592 (Tex. App.—Houston [1st Dist.] 2014, pet.
filed) (en banc).
B. The pleadings and evidence support the trial court’s submission
of the negligence theory rather than a premises theory.
The Texas Workers’ Compensation Act permits private Texas employers to
elect whether to subscribe to workers’ compensation insurance. Tex. W. Oaks
Hosp., L.P. v. Williams, 371 S.W.3d 171, 186 (Tex. 2012) (citing Tex. Lab. Code
Ann. § 406.002(a) (West 2015)). If an employer elects to subscribe, then its
employees generally are prohibited from suing it and must instead pursue their
claims through an administrative agency. Id. In that administrative proceeding,
employees need prove only that they were injured in the course and scope of their
employment. Id.
If an employer elects to be a non-subscriber to workers’ compensation
insurance, as Kroger has, then it is subject to suits at common law for damages, to
which it can raise only limited defenses. Id. In that situation, an employee injured
on the job must file suit and “prove the elements of a common law negligence
claim.” Id. (citing Tex. Lab. Code Ann. § 406.033(d)); Amigos Meat Distributors,
L.P. v. Elizondo, No. 01-10-00867-CV, 2011 WL 5026227, at *2 (Tex. App.—
Houston [1st Dist.] Oct. 20, 2011, no pet) (mem. op.). To establish negligence, a
party must establish a duty, a breach of that duty, and damages proximately caused
by the breach. Austin v. Kroger Texas, L.P., No. 14-0216, 2015 WL 3641066, at
*12 (Tex. June 12, 2015); Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.
2006).
The supreme court has held that employers in Texas owe certain continuous,
19
non-delegable duties to their employees. Farley v. M. M. Cattle Co., 529 S.W.2d
751, 754 (Tex. 1975) (abrogated on other grounds by Parker v. Highland Park,
Inc., 565 S.W.2d 512 (Tex. 1978)); see Austin, 2015 WL 3641066, at *15 (stating
that employer may owe duties to employee in addition to those a landowner owes
an invitee, including duties to train and supervise). Among these are the duties to
(1) furnish a reasonably safe place to work, (2) warn employees of hazards of their
employment that are not commonly known or already appreciated, (3) supervise
employees’ activities, (4) hire competent co-employees, (5) furnish reasonably safe
instrumentalities with which to work, and (6) provide safety regulations. Cent.
Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 652 & n.10 (Tex. 2007); Farley,
529 S.W.2d at 754. An employer must also train employees in the safe use and
handling of products and equipment used in and around an employer’s premises or
facilities. Austin, 2015 WL 3641066, at *15; Aleman v. Ben E. Keith Co., 227
S.W.3d 304, 311 (Tex. App.—Houston [1st Dist.] 2007, no pet.). An employer
must exercise ordinary care, based on standard negligence principles, in carrying
out these duties. Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996); Werner v.
Colwell, 909 S.W.2d 866, 869 (Tex. 1995); see Elwood, 197 S.W.3d at 794 (“An
employer has a duty to use ordinary care in providing a safe workplace.”).
Milanes alleged and presented evidence during trial that Kroger breached
some of these duties. This evidence includes, but is not limited to: the failure to
provide reasonably safe equipment or instrumentalities necessary for the
performance of Milanes’s job; the failure to provide safety regulations related to
Milanes’s work; and the failure to instruct or train employees in the safe use and
handling of equipment—specifically, the Biro band saw. See Austin, 2015 WL
3641066, at *15. Milanes testified that he was never provided the operator’s
manual for the Biro saw and he was not trained to use the adjustable blade guard
20
on the saw while cutting meat. In fact, he testified he was not even aware that the
saw was equipped with a blade guard at all. In addition, both expert witnesses
testified that the band saw should not be operated when the blade guard is not used
or operational. The evidence also includes testimony from several witnesses that,
prior to Milanes’s injury: (1) the bone-in saw had an inoperable blade guard; (2)
the saw was experiencing continuing problems such as rapidly dulling blades and
improper blade tension; and (3) Kroger was unable to fix the problems yet did not
take the saw out of operation. Because Milanes pled and introduced legally
sufficient evidence demonstrating Kroger negligently breached duties it owed to
him as an employee, we conclude that the trial court did not err when it submitted
the negligence theory of liability to the jury. See id. at *16 (“We therefore reject
Kroger’s argument that its lack of any negligent activity contemporaneous with
[the plaintiff’s injury] defeats [the plaintiff’s] instrumentalities claim as a matter of
law.”); see also Amigos Meat Distributors, L.P., 2011 WL 5026227, at *3
(affirming judgment signed after jury found non-subscribing employer negligent
based on evidence that employer failed to provide operator’s manual for Biro band
saw to employee meat cutter and also failed to train employee adequately on safe
operation of saw).
The cases that Kroger cites in urging that its only duty to Milanes was that of
a premises owner do not change this analysis. Most of Kroger’s cases are
distinguishable because they did not involve the employer/employee relationship.4
4 See, e.g., Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010) (involving
suit filed by hotel guest, not employee); In re Texas Dept. of Transp., 218 S.W.3d 74, 75 (Tex.
2007) (involving lawsuit against State of Texas arising out of car wreck); Clayton W. Williams,
Jr., Inc. v. Olivo, 952 S.W.2d 523, 526 (Tex. 1997) (“In this case, we consider the liability of a
general contractor and its on-site representative for injuries to an independent contractor’s
employee.”); Dallas Market Center Development, Co. v. Liedeker, 958 S.W.2d 382, 383 (Tex.
1997) (concerning lawsuit filed by delivery person injured while loading flowers onto hotel’s
elevator) (overruled on other grounds by Torrington Co. v. Stutzman, 46 S.W.3d 839 (Tex.
21
The remainder of Kroger’s cases involved employees injured by a premises
condition or by conduct of a third party, neither of which is at issue.5 Thus, as
Kroger conceded at oral argument, none of these cases control the outcome here.6
The supreme court recently confirmed that, “[a]s [plaintiff’s] employer,
Kroger owed [him] duties in addition to its premises-liability duty and its duty not
to engage in negligent activities, including the duty to provide [the plaintiff] with
necessary instrumentalities.” Austin, 2015 WL 3641066, at *15. We therefore
overrule Kroger’s first two issues on appeal.
II. Milanes introduced legally and factually sufficient evidence that
Kroger’s negligence proximately caused Milanes’s injuries and that he
suffered lost earning capacity as a result of those injuries.
In its third issue, Kroger attacks the legal and factual sufficiency of the
evidence of causation. In its fourth issue, Kroger contends Milanes introduced
legally and factually insufficient evidence that his earning capacity was negatively
impacted by his injury. We address each contention in turn.
2000)); Keetch v. The Kroger Co., 845 S.W.2d 262, 263 (Tex. 1992) (customer, not employee,
filed suit for injury sustained on defendant’s premises); Foodtown v. Tanguma, No. 01-11-
00047-CV, slip op. at 2 (Tex. App.—Houston [1st Dist.] Dec. 22, 2011, no pet.) (same).
5 See, e.g., Sears, Roebuck & Co. v. Robinson, 280 S.W.2d 238, 240 (Tex. 1955)
(employee injured by premises condition rather than instrumentality) (overruled by Austin v.
Kroger Texas, L.P., No. 14-0216, 2015 WL 3641066, at *12 (Tex. June 12, 2015)); Barton v.
Whataburger, Inc., 276 S.W.3d 456, 466–67 (Tex. App.—Houston [1st Dist.] 2008, pet. denied)
(plaintiff-employee victimized by third-party criminal act on employer’s premises); Allen v.
Connolly, 158 S.W.3d 61, 63 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (same).
6 During oral argument, Kroger was unable to identify a case dictating the outcome it
seeks in its first issue. Kroger instead asked this Court to change the law. This we cannot do
because changing higher-court precedent is not the function of an intermediate court of appeals.
See Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 195 (Tex. App.—Houston [14th
Dist.] 2002, no pet.) (“we must follow the Texas Supreme Court's expressions of the law and
leave changes in the application of common-law rules to that higher authority”); see also Entergy
Gulf States, Inc. v. Summers, 282 S.W.3d 433, 476 (Tex. 2009) (Willet, J., concurring) (“Judges
have no authority to second-guess the myriad policy judgments codified in the Workers’
Compensation Act”).
22
A. Standard of review
When an appellant attacks the legal sufficiency of an adverse finding on an
issue on which it did not have the burden of proof, the appellant must demonstrate
on appeal that there is no evidence to support the adverse finding. Univ. Gen.
Hosp., L.P. v. Prexus Health Consultants, LLC, 403 S.W.3d 547, 550 (Tex. App.—
Houston [14th Dist.] 2013, no pet.). In conducting a legal sufficiency review, we
must consider the evidence in the light most favorable to the appealed finding and
indulge every reasonable inference that supports it. Id. at 550–51 (citing City of
Keller v. Wilson, 168 S.W.3d 802, 821–22 (Tex. 2005)). The evidence is legally
sufficient if it would enable reasonable and fair-minded people to reach the
decision under review. Id. at 551. This Court must credit favorable evidence if a
reasonable trier of fact could, and disregard contrary evidence unless a reasonable
trier of fact could not. Id. The trier of fact is the sole judge of the witnesses’
credibility and the weight to be given their testimony. Id.
This Court may sustain a legal sufficiency (or no evidence) issue only if the
record reveals one of the following: (1) the complete absence of evidence of a vital
fact; (2) the court is barred by rules of law or evidence from giving weight to the
only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital
fact is no more than a scintilla; or (4) the evidence established conclusively the
opposite of the vital fact. Id. Evidence that is so weak as to do no more than
create a mere surmise or suspicion that the fact exists is less than a scintilla. Id.
In reviewing the factual sufficiency of the evidence, we must examine the
entire record, considering both the evidence in favor of, and contrary to, the
challenged findings. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–
07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When a party
challenges the factual sufficiency of the evidence supporting a finding for which it
23
did not have the burden of proof, we may set aside the verdict only if it is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust. See Ellis, 971 S.W.2d at 407; Barnhart v. Morales, 459 S.W.3d 733, 745
(Tex. App.—Houston [14th Dist.] 2015, no pet.). The amount of evidence
necessary to affirm is far less than the amount necessary to reverse a judgment.
Barnhart, 459 S.W.3d at 745. This Court is not a factfinder. Id. (citing Ellis, 971
S.W.2d at 407). Instead, the jury is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. Id. We may not, therefore,
pass upon the witnesses’ credibility or substitute our judgment for that of the jury,
even if the evidence would also support a different result. Id. If we determine the
evidence is factually insufficient, we must detail the evidence relevant to the issue
and state in what regard the contrary evidence greatly outweighs the evidence in
support of the verdict; we need not do so when affirming a jury’s verdict. Id.
(citing Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (per
curiam)).
B. Sufficient evidence supports the jury’s finding that Kroger’s
negligence proximately caused Milanes’s injury.
To prevail on a negligence claim, a plaintiff must prove not only that the
defendant breached a duty, but also that he sustained damages proximately caused
by that breach. Torres v. Teassier, 231 S.W.3d 60, 63 (Tex. App.—Houston [14th
Dist.] 2007, no pet.) (citing D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.
2002)). Proximate cause consists of two elements: cause in fact and foreseeability.
Del Lago Partners, Inc., 307 S.W.3d at 774.
Cause in fact means that the defendant’s act or omission was a substantial
factor in bringing about the injury, which would not otherwise have occurred.
Western Investments, Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). Cause in
24
fact is not shown if the defendant’s conduct did no more than furnish a condition
that made the injury possible. Id. The second element of proximate cause,
foreseeability, requires that a person of ordinary intelligence should have
anticipated the danger created by the negligent act or omission. Doe v. Boys Clubs
of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995). These elements cannot
be established by mere conjecture, guess, or speculation. Id. at 477. Proximate
cause may, however, be established by direct or circumstantial evidence and the
reasonable inferences drawn from that evidence. Pilgrim’s Pride Corp. v. Smoak,
134 S.W.3d 880, 889 (Tex. App.—Texarkana 2004, pet. denied) (citing McClure v.
Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex. 1980)).
As detailed in the background section, Milanes introduced evidence that
Kroger failed to maintain the Biro band saw properly. This includes evidence that
Brent Nixon, the primary Kroger employee charged with maintaining and repairing
the store’s bone-in band saw, was not certified by the saw’s manufacturer. The
jury also heard evidence that Bell, a meat cutter and relief meat market manager,
frequently attempted to repair the saw when employees reported problems to him
despite Kroger’s stated policy that the only thing meat cutters should do to a band
saw was change out a dull blade. Other evidence of improper maintenance
includes the lack of maintenance records and the meat cutters’ testimony that
problems with the saw were reported but never fixed.
Evidence of improper maintenance also included that the blade guard on the
saw was inoperable and a loud noise emanated from the saw. Witnesses testified
the noise could be caused by the blade hitting the blade scrapers or by incorrect
blade tension. Numerous witnesses testified that improper blade tension was a
frequent problem encountered while using the bone-in saw. Ryan, Milanes’s
mechanical engineering expert, testified that improper blade tension can cause a
25
wandering cut, increasing the possibility that the blade will bind in the meat and
cause the meat to roll.
Evidence showed that if the tension on the blade is incorrect, it can cause the
blade to pop off, resulting in the blade hitting the metal saw housing. Witnesses
testified that they had experienced the blade popping off this saw, as confirmed by
scratch marks on the inside of the housing. Ryan testified that frequent contact
with the metal saw housing results in the rapid dulling of the saw’s blade.
Witnesses also testified that the bone-in saw’s blade dulled at a very rapid rate,
often within thirty to forty minutes of putting on a new blade. Kroger witnesses
confirmed that if the blades were dulling at such a fast pace, something was very
wrong with the saw.
Every meat cutter who testified during the trial agreed that meat sometimes
jumps or rolls when it is being cut, and that it is normally unpredictable when
jumping or rolling will happen. Several testified, however, that the probability of
meat jumping or rolling increases when the saw’s blade is dull. Milanes himself
testified he reported to Kroger management that the saw was frequently catching
the meat and sucking it into the blade. He also testified that he noticed the blade
was dull the day of his injury. Although Milanes had the discretion to change out a
dull blade when he deemed it necessary, he testified that he was encouraged by
store managers to be conservative when using blades and that there was a financial
incentive for those managers to come in under budget.7
Apart from improper maintenance and problems with blade tension and
dulling, there was also evidence that Kroger failed to provide safety regulations
and train Milanes and other employees properly on the safe operation of the Biro
7 A non-subscribing employer may not assert any negligence by an employee as a
defense. See Tex. Lab. Code Ann. § 406.033(a) (West 2015).
26
band saw—particularly that the blade guard should be used at all times. Milanes
testified that he was not even aware of the existence of a blade guard and was not
using it on the day of his injury. There was also evidence that (1) it was the
common practice of Kroger’s meat cutters to not use the blade guard, and (2)
Kroger managers were aware of this practice but chose to do nothing about it.
Both expert witnesses testified that a band saw should not be used without the
blade guard. Ryan explained that the accident would not have occurred, and
Milanes would not have been injured, if the blade guard had been used as required
by the operator’s manual.
For these reasons, we conclude there is legally and factually sufficient
evidence that Kroger’s breach of the duties to provide safe equipment and safety
regulations and to train employees in the safe use of equipment proximately caused
Milanes’s injury. We overrule Kroger’s third issue on appeal.
C. Sufficient evidence shows that Milanes lost earning capacity as a
result of his injury.
In its third issue, Kroger contends Milanes presented legally and factually
insufficient evidence of lost earning capacity resulting from the amputation of
three fingers on his dominant right hand while he was cutting meat with Kroger’s
bone-in saw. In making this argument, Kroger points out that Milanes returned to
work at the same Kroger store following his injury at the same rate of pay. It goes
on to argue that the only reason he lost this job was the result of his own
insubordination, and thus there is no evidence of lost earning capacity as a result of
his injury. Kroger makes no other argument about the insufficiency of the
evidence supporting the jury’s award of $151,744 in damages for lost earning
capacity.
Loss or impairment of earning capacity is a recognized element of damages
27
in a personal injury case. Strauss v. Cont’l Airlines, Inc., 67 S.W.3d 428, 435
(Tex. App.–Houston [14th Dist.] 2002, no pet.). Earning capacity has been defined
as the ability and the fitness to work in gainful employment for any type of
compensation, including salary, commissions, and other benefits. Id. at 435 n.2.
The plaintiff has the burden of proving loss of earning capacity. Id. The measure
of this type of damage is the plaintiff’s diminished earning power or earning
capacity, in the past or future, directly resulting from the injuries sustained in the
accident. Id. To support an award of damages for lost earning capacity, the
plaintiff generally must introduce evidence from which a jury may reasonably
measure in monetary terms his earning capacity prior to injury. Id. at 435–436.
Specific proof of actual earnings and income are evidence of lost earning capacity.
Id. at 436.
The jury heard evidence regarding Kroger’s treatment of Milanes after his
injury. This includes testimony that as soon as four weeks after his accident,
Kroger began pressuring Milanes to return to work. The record also contains
evidence that once Milanes returned, he was put back to work in the meat
department in close proximity to the department’s band saws despite his doctors’
concerns that he should not be required to work around the bone-in saw. The jury
also heard Underwood’s testimony that Milanes could possibly transfer out of the
meat department, but his pay rate would be different if he did so. There was also
evidence that once Milanes returned to work on light duty, he had no specific job
duties, but instead did little more than talk to customers.
The jury heard the testimony addressing Milanes’s termination, including
Underwood’s testimony that Milanes was fired for insubordination when he
refused to carry out an order to change the meat department hose. They also heard
Milanes’s testimony that he was still on light duty and experiencing pain in his
28
right hand at that time. Although Milanes admitted that he did not tell Underwood
that he was physically incapable of doing the task, he did tell Underwood that his
refusal was a light duty issue. As the trier of fact and sole judge of the credibility
of the witnesses, the jury could have disbelieved Underwood’s testimony that
Milanes was fired for insubordination, believed that Milanes refused to change out
the hose due to the condition of his injured hand and sufficiently informed
Underwood of that fact, and found that the termination was related to Milanes’s
injury. Kroger has not briefed any challenge to Milanes’s testimony regarding his
post-termination inability to secure other long-term employment due to his injury,
nor has it challenged the testimony of Milanes’s expert economist quantifying
Milanes’s loss of past and future earning capacity.8
We hold there is legally and factually sufficient evidence supporting the
jury’s finding that Milanes’s loss of earning capacity resulted from his workrelated
injury. We overrule Kroger’s fourth issue on appeal.
III. The trial court did not abuse its discretion when it admitted Milanes’s
post-accident photographs and videos into evidence.
Kroger asserts in its fifth issue that the trial court abused its discretion when
it admitted into evidence five photographs (Plaintiff’s Exhibits 5, 6, and 7) and
three videos (Plaintiff’s Exhibits 10, 12, and 13) taken by Milanes after he returned
to work.9 According to Kroger, the trial court should have excluded the
8 Milanes testified regarding his desire to work, his inability to do manual-labor jobs like
those he had been trained to perform, and his departure from a job pulling parts at a warehouse
because he kept dropping the parts. His expert, Dr. Donald Huddle, testified regarding Milanes’s
loss of his Kroger salary ($16.69 per hour) and benefits up to the time of trial. He also testified
regarding the present value of the salary and benefits Milanes would lose over his expected
future work life, assuming that Milanes would be able to find employment at a lower salary. The
jury awarded approximately the amount Dr. Huddle calculated for past lost earning capacity, and
less than half of the lowest amount he calculated for future lost earning capacity.
9 In a letter brief filed following oral argument, Kroger identified a sixth photograph,
Plaintiff’s Exhibit 8, as a photograph it was challenging the admission of on appeal. Kroger did
29
photographs and videos because they were taken illegally and also because they
were not relevant given that all were taken after the accident.
A. Standard of review
The decision to admit or exclude evidence lies within the sound discretion of
the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234
(Tex. 2007). A trial court exceeds its discretion if it acts in an arbitrary or
unreasonable manner or without reference to guiding rules or principles. Barnhart,
459 S.W.3d at 742 (citing Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.
2002)). When reviewing matters committed to the trial court’s discretion, a
reviewing court may not substitute its own judgment for that of the trial court. Id.
Thus, the question is not whether this court would have admitted the evidence.
Rather, an appellate court will uphold the trial court’s evidentiary ruling if there is
any legitimate basis for the ruling, even if that ground was not raised in the trial
court. Id. Therefore, we examine all bases for the trial court’s decision that are
suggested by the record or urged by the parties. Id.
A party seeking to reverse a judgment based on evidentiary error must prove
that the error probably resulted in rendition of an improper judgment, which
usually requires the complaining party to show that the judgment turns on the
particular evidence excluded or admitted. Id. To determine whether evidentiary
error probably resulted in the rendition of an improper judgment, an appellate court
reviews the entire record. Id. (citing Interstate Northborough P’ship v. State, 66
S.W.3d 213, 220 (Tex. 2001)).
not, however, object to the admission of Exhibit 8 during trial. Kroger therefore has not
preserved its complaint regarding the admission of this photograph for appellate review. Tex. R.
App. P. 33.1; Grace Interest, L.L.C. v. Wallis State Bank, 431 S.W.3d 110, 122 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied).
30
B. Kroger has not shown an abuse of discretion in admitting the
challenged photographs and videos.
Kroger makes two separate arguments in its fifth issue. First, it asserts that
the challenged photographs and videos should have been excluded because they
were obtained by illegal means. Second, Kroger contends the photographs and
videos were not relevant because they were taken months after Milanes was
injured. We address Kroger’s second contention first.
1. The challenged photographs and videos were relevant.
Relevant evidence is evidence that has a tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence. Tex. R. Evid. 401. Relevant
evidence is generally admissible, irrelevant evidence is generally inadmissible. Id.
at 402. Facts existing both before and after an event in controversy may be
relevant to establishing the cause of that event. City of Houston v. Leach, 819
S.W.2d 185, 191 (Tex. App.—Houston [14th Dist.] 1991, no writ).
Generally, pictures or photographs relevant to any issue in a case are
admissible. Huckaby v. A.G. Perry & Sons, Inc., 20 S.W.3d 194, 209 (Tex.
App.—Texarkana 2000, pet. denied). When a photograph or video portrays facts
relevant to an issue, it is admissible if verified by a witness as being a correct
representation of the facts. Cheek v. Zalta, 693 S.W.2d 632, 635 (Tex. App.—
Houston [14th Dist.] 1985, no writ). The verifying witness must know the object
involved and be able to state that the photograph or video correctly represents it.
Id. The fact that the scene or the object portrayed in the photograph or video has
changed since the time of the event in question in the litigation does not prevent
the admission of the photograph or video into evidence if the changes are
explained in such a manner that the photograph or video will help the jury in
31
understanding the nature of the condition at the time of the event at issue. Id.
Indeed, the parties’ experts inspected the saw well after Milanes took the
challenged photos and videos, and photos and videos from expert Ryan’s
inspection were also introduced into evidence. A dispute as to the accuracy of
some part of the photograph or video usually goes only to the weight of the
evidence, not to its admissibility. See id.; see also Garza v. Cole, 753 S.W.2d 245
247 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.) (stating that
conditions shown in video need not be identical to those at time of event in
question for video to be admissible into evidence).
Plaintiff’s Exhibit 5 is a photograph of the Post Oak Kroger’s bone-in saw
wrapped in clear plastic. Plaintiff’s Exhibit 6 contains three photographs of the
blade cleaners on the same bone-in saw. William Quintero, a journeyman meat
cutter at the Post Oak Kroger, testified that these photographs fairly and accurately
depicted the bone-in saw Milanes was using. Plaintiff’s Exhibit 7 is another
photograph of the Post Oak Kroger’s bone-in saw. Milanes testified that he took
the photograph and that it fairly and accurately depicted the bone-in saw he used.
Because witnesses testified that the challenged photographs accurately depicted the
bone-in saw, we conclude that the trial court did not abuse its discretion when it
overruled Kroger’s relevance objections and admitted Exhibits 5, 6, and 7 into
evidence. See Cheek, 693 S.W.2d at 635.
Plaintiff’s Exhibit 10 is a 28-second video showing the bone-in saw running
with a loud noise emanating from it. Milanes testified that Exhibit 10 portrayed
the bone-in saw and that the noise heard on the video was the same as the noise the
saw was making when he was injured. Plaintiff’s Exhibit 12 is another brief video.
Milanes, who took the video, testified that it showed a boneless band saw at the
Post Oak Kroger, which was running correctly. The saw shown in Exhibit 12 did
32
not emit a loud noise while it was running. Plaintiff’s Exhibit 13 is a 14-second
video of a non-operational bone-in saw at the Post Oak Kroger. The video shows
that the blade had popped off the saw. On the video, Milanes says: “once again the
saw is broken in the same day they said they fixed it.” Milanes testified that the
videos portrayed the same circumstances that were present before he was injured
and they would be helpful to the jury during his testimony. We conclude that the
trial court did not abuse its discretion when it overruled Kroger’s relevance
objections and admitted the three videos into evidence. See Cheek, 693 S.W.2d at
635.
2. The challenged photographs and videos were not illegally obtained.
Kroger also objected to the admission of the photographs and videos based
on its contention that they were all taken illegally. Kroger cites no authority
supporting its position. Cf. Tex. Civ. Prac. & Rem. Code Ann. § 123.002 (West
2011) (creating a civil cause of action against a person who intercepts another
person’s communication); Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005)
(providing that no evidence obtained in violation of either the constitution or laws
of the United States or the State of Texas “shall be admitted in evidence against the
accused on the trial of any criminal case.”). Further, we find nothing in the record
to suggest that Milanes committed either the offense of criminal trespass, Tex.
Penal Code Ann. § 30.05 (West Supp. 2014), or the offense of improper
photography or visual recording. Id. § 21.15 (West 2011). We hold that the trial
court did not abuse its discretion when it overruled Kroger’s “illegally obtained”
objection and admitted the challenged photographs and videos into evidence.
Having rejected each argument raised by Kroger in its fifth issue, we overrule that
issue.
33
IV. Kroger has not shown that it was harmed by the trial court’s alleged
failure to intervene to remedy perceived juror misconduct.
In its sixth issue, Kroger contends the trial court abused its discretion when
it refused to grant Kroger a new trial based on the allegation that the trial court
failed to intervene timely to correct potential juror misconduct. We conclude
Kroger is not entitled to a new trial because it has not demonstrated it was harmed
as a result of any alleged failure to intervene by the trial court.
Kroger’s motion for new trial attached an affidavit from one of the jurors in
the case. In the affidavit, the complaining juror stated that after the jury began its
deliberations, she came to believe that some other members of the jury were
violating instructions contained in the court’s charge. The complaining juror
alleged that, during the jury’s deliberations, an attorney member of the jury offered
his own definitions of legal phrases and words derived from his own personal
experience as an attorney. The complaining juror also alleged that a second juror
contributed her thoughts based on her personal experience as a legal assistant. The
complaining juror did not allege that any outside influence was brought to bear on
the jurors during their deliberations. The complaining juror stated that she asked,
through the bailiff, to speak with the trial judge about her concerns; however, the
trial judge did not speak with the juror during the remainder of the jury’s
deliberations.
The jury reached and delivered its 10-2 verdict in favor of Milanes. The
complaining juror, believing that the misconduct she perceived had impacted the
jury’s verdict, alleged that she again asked to speak with the trial judge. According
to the complaining juror, the trial judge was in court at the time, and the juror was
told she could wait until he was finished to speak with him. The complaining juror
decided to leave the courthouse before the trial judge was able to speak with her,
34
however.
During the hearing on Kroger’s motion for new trial, the trial judge stated
that he had addressed with the parties a prior complaint made by this juror
following jury selection, but that he was not provided notice of the juror’s alleged
request during deliberations. The trial judge found the juror’s allegations not
credible and denied the motion for new trial.
Kroger argues it is entitled to a new trial based on judicial misconduct:
specifically, the trial court’s failure to investigate the complaining juror’s
allegations that members of the jury had violated the trial court’s instructions
during their deliberations. To reverse a judgment on the basis of judicial
misconduct, a reviewing court must conclude both that judicial impropriety
occurred and that the complaining party suffered harm. See Silcott v. Oglesby, 721
S.W.2d 290, 293 (Tex. 1986); Markowitz v. Markowitz, 118 S.W.3d 82, 86 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied). Because we conclude that Kroger
has not shown it was harmed as a result of the trial court’s alleged failure to
intervene to correct the perceived juror misconduct, we need not decide whether
any judicial impropriety occurred, and we therefore express no view on that issue.
Given that the complaining juror’s allegations did not involve outside
influence, Kroger’s attempt to show harm through an examination of the jury’s
discussions during its deliberations is prohibited by both Rule 327(b) of the Texas
Rules of Civil Procedure and Rule 606 of the Texas Rules of Evidence. See Tex.
R. Civ. P. 327(b) (“A juror may not testify as to any matter or statement occurring
during the course of the jury’s deliberations or to the effect of anything upon his or
any other juror’s mind or emotions as influencing him to assent or dissent from the
verdict concerning his mental processes in connection therewith, except that a juror
may testify whether any outside influence was improperly brought to bear upon
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any juror.”); Tex. R. Evid. 606(b) (prohibiting a juror from testifying about jury’s
deliberations unless allegation involves outside influence). Kroger admits there
was no outside influence brought to bear on the jury.
Instead, Kroger argues that certain jurors violated the trial court’s
instructions during the jury’s internal deliberations. To substantiate this claim,
Kroger offers only the affidavit testimony of a member of the jury regarding
deliberations—evidence that Kroger is prohibited from using.10 See id. Because
we (like the trial court) cannot consider the only evidence offered by Kroger to
establish it was harmed by the judge’s alleged misconduct in failing to address the
jurors’ perceived violations during deliberations, we conclude Kroger has failed to
show harm. Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370 (Tex.
2000) (holding that rules prevent juror from testifying that jury discussed improper
matters during deliberations). Thus, the trial court did not abuse its discretion in
denying Kroger’s motion for new trial. We overrule Kroger’s sixth issue.

* * *

10 Of course, the juror’s allegation that she asked the bailiff for an opportunity to speak to
the trial judge about her concerns regarding deliberations is not itself evidence of matter
occurring during deliberations, though the trial judge found her allegations not credible. Yet
even if we assumed for the sake of argument that the request was made and the trial court should
have pursued it, the court would have learned no more than the allegations in the juror’s affidavit
regarding what occurred in deliberations, which “cannot form the basis of a motion for new
trial.” In re Zimmer, Inc., 451 S.W.3d 893, 897 n.1 (Tex. App.—Dallas 2014, orig. proceeding).

Outcome: Having overruled each of the issues Kroger raised in this appeal, we affirm
the trial court’s judgment.

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